Sunday, October 14, 2007

Columbus Day Recess 2007

Posts are apt to be few and far between ... I have a few political issues on my radar, but my attention is not going to be directed at politics for at least a few weeks.

Congressional action on FISA modification, with particular attention on retroactive immunity and the scope of Court review.

Court action on detainee cases. The eventual prognosis for the statutory CSRT procedure as applied to a range of detainees. The government is suggesting it might reconvene CSRTs in some cases, rather than risk an adverse due process ruling from the DC Circuit on previous Review Tribunal process and conclusions.

NYT: U.S. Mulls New Status Hearings for Guantánamo Inmates
SCOTUSblog: Government considers re-doing detainee cases
Chesney: CSRT redux?

CIA and administration resistance to review by Inspector General. Risk aversion at the prospect of being ruled in error ... because, as we all know, the government NEVER makes errors.

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Where Blackwater and state secret cross paths: Bill on Contractor Liability Raises Intel Agency Concerns, referring to the House-passed H.R.2740.

Laura Dickinson, posting at Balkinize, composed a helpful introduction to contractor liability suits: Tort Liability for Military Contractors.
[Oct 16 - see also Immunity for Military Contractors Under Coalition Provisional Authority Order 17]


October 15

Misplaced priority of the morning ...

Sen. Craig to File Appeal - AP

Craig said. "And I wrestled with it a long while. ... I should have told my wife. I should have told my kids. And most importantly, I should have told counsel."

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On nominations of all sorts, not just judicial ... Orin Kerr of the Volokh Conspiracy prompts comments with a post titled "Interim Appointments."


October 16

Will Kay Baily Hutchison join the ranks of Republican Senators announcing an intention to "resign?" She, to run for governor of Texas.

Is the Washington Post inflating the possibility that The US-India Civilian Nuclear Power Pact May be Near Collapse?

Fact Sheet: House FISA Legislation the Wrong Direction for Our National Security
WH Policy Statement (would veto the bill)

vs.

H.R.3773 - RESTORE Act of 2007
House Report 110-373: Part 1 - Part 2


October 18

Even the top insider management knew there was trouble at Justice?

Mukasey's First Dilemma? - WSJ.com

... when [Craig Morford] was named as acting deputy, former Attorney General Alberto Gonzales gave him a mandate to act like a chief operating officer hired to fix a company in crisis. That was one month before Mr. Gonzales resigned from the top job.

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H.R.3773 - RESTORE Act of 2007, is dead. The Democratic leadership in the House has decided to drop it, after the House agreed to consider the bill. Here comes the vehicle for more retroactive immunity for breaking (some privacy) laws, it'll start in the Senate ...

Senate and Bush Agree On Terms of Spying Bill - WaPo

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

Same subject, comments from Senator Reid ...

Mr. REID. Mr. President, if I could briefly say, while the distinguished Republican leader is on the floor, I had a meeting late yesterday afternoon with the chairman of the Intelligence Committee, Senator Rockefeller. He indicated to me that he and Senator Bond, the vice chair of that Intelligence Committee, are moving forward this week to have a markup on the Intelligence bill. It will be bipartisan. Senator Leahy has announced he would move very quickly with the Judiciary Committee, which has joint jurisdiction of that.

Hopefully, we can have that bill to us within the next couple of weeks. We should get that done so it is not a last-minute deal like it was right before we broke for one of our breaks. I think it was before the August recess when we were pushed so hard on that matter. So I think things are moving along well. The Intelligence Committee is working extremely well. I am very satisfied with the work they have accomplished.

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The House-passed press shield law, H.R.2102 - Free Flow of Information Act of 2007, is on the Senate's legislative calendar. See also House Report 110-370 and S.1267. The Senate Bill has an express provision that applies "press shield" rights to public communications providers (telephone companies and internet service providers). The Senate language essentially guts the possibility of civil suits against public communication providers for violation of privacy. Public communication providers would become the equivalent of "the press" when it comes to compelled testimony.

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Senator Grassley said, "Senior GSA management needs to realize that what may be profitable or strategically important for the GSA may not always be in the best interests of the taxpayers." An interesting speech to read (cure for insomnia if listened to), and the senator should know that management will ALWAYS act in the organization's best interest, even when that is at the expense of the customer.

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A somewhat interesting list of House-passed bills that would have been quietly passed but for objection by some Senator (what happened to the obligation to report objections in writing?): National Forests - Natural Resource Projects.

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12:58: Senator Reid urges Labor/HHS Appropriations as "to be done" this week, with "The Farm Bill" next up as the hot priority -- even though "The Farm Bill" hasn't made it out of mark-up as of yet.

18:58: Senator Reid modifies his urging and pushes the git 'r done deadline to Tuesday noon. Smiles all around. First degree amendments due by 1:00 p.m. tomorrow.

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Second Circuit withdraws its opinion in Higazy v. Millenium Hotel and Resorts. Intriguing.
Oct 19: Blogger Posts Opinion Despite Security Concerns


October 19

Select Committee on Intelligence: Committee met in closed session and ordered favorably reported an original bill entitled, "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007"

Press Release of Intelligence Committee - October 18, 2007

FISA Amendments Act of 2007 (1.9 Mb PDF file)

Some information in the NYT, Panel Approves Eavesdropping Compromise

" ... the measure [was] approved in a 13-to-2 vote." The two Nay votes were cast by Senators Wyden and Feingold. Other statements reported in the NYT story may or may not reflect reality, since Senators and media are known to lie, and we don't have the text of any part of the "eavesdropping compromise," let alone the entire thing.

The three closing paragraphs in the NYT article point up some interesting (if true) details:

  • Senator Feingold's impression of the top-secret documents, disclosed by the administration to selected members of the Senate (ostensibly to disclose the scope and rationale of the warrantless surveillance), is that they show clear illegality, rather than basis for granting retroactive immunity.
  • Senator Dodd is opposed to the bill, and characterizes the retroactive immunity as "amnesty"
  • Senator Rockefeller refused to grant civil or criminal immunity to government actors. That is, the retroactive immunity ("amnesty" is a good word for it) is extended only to the communications carriers.

Senate panel OKs spying legislation - Los Angeles Times

Rockefeller and Bond defended the immunity provision, saying that the companies had been approached in the aftermath of the Sept. 11 attacks and were led to believe that the government's requests for access to their networks were lawful.

"Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security," Rockefeller said. "The onus is on the administration, not the companies, to ensure that the request is on strong legal footing, and if it is not, it is the administration that should be held accountable."

This doesn't hold water, in light of Qwest's quick recognition that the government-requested surveillance was illegal. AT&T and Verizon legal people aren't rubes or naive when it comes to the legal limits of warrantless surveillance. I'm not making a value judgement that what they did was "morally wrong," because sometimes breaking the law is morally right. Like crossing the border to come to a better country, not paying taxes, and lying to investigators or a court to save your ass.

It's no wonder people lack respect for the law, and for Congress. The little guy is squeezed, the big guy gets off. Accountability is for peons.

Senate panel OKs wiretap bill, telecom immunity - Reuters

"It ensures that the unchecked wiretapping policies of the administration are a thing of the past," Rockefeller told reporters.

Now that's a hoot! The new law has the same power of assuring restraint that FISA 1978 had, ZERO. Congress is going to grant blanket amnesty for breaking that law, if the law was violated; and it will grant amnesty for breaking THIS law, when push comes to shove.

Yes, "when," not "if." The next barrier is wholly domestic communications, because, as we all know, there are bad guys roaming among us (some of them are citizens - you know who you are), and warrants impede swift, preemptive and decisive action against evil-thinker/talkers.

US Rep Sees Telecom Cos Getting Wiretap Immunity - CNN

The telephone companies argue that the program's legality wasn't theirs to determine. They say that the dispute is between Congress and the White House and that they shouldn't get caught in the crossfire. ...

Verizon and AT&T told lawmakers earlier this week that, while they could neither confirm nor deny participation in a wiretapping program, they are reimbursed for those types of government requests.

Paid to break the law. A great gig. Unfortunately, I don't see a Presidential Order in my future, telling me not to pay taxes, etc. Dang. So much for legislative amnesty for my lawbreaking.

Senate Intel Bill Grants Immunity - AP (by Pamela Hess)

The draft bill would direct civil courts to dismiss lawsuits against telecommunications companies if the attorney general certifies that the company rendered assistance between Sept. 11, 2001 and Jan. 17, 2007, in response to a written request authorized by the president, to help detect or prevent an attack on the United States.

Suits also would be dismissed if the attorney general certifies that a company named in the case provided no assistance to the government. The public record would not reflect which certification was given to the court, according to Democratic and Republican aides who spoke on condition of anonymity because the committee had not yet acted.

Making the distinction seems a waste. Just certify "Such and so company either rendered assistance pursuant to an order authorized by the president, or it did not." Sheesh. It's pure amnesty, why bother making the distinction to the court? Just dismiss telecoms from all civil liability for privacy violations.

And setting that January 17, 2007 date sets up an argument that there was a transition from "illegal" to "legal," coinciding with a transition from "program not under FISC" to "program under FISC." A better legislative solution is to altogether remove the date references. A telecom who acts pursuant to a written request (demand) authorized by the president was and is acting legally, period. Just write that in the statute, without any date delimiters.

If "Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security" is a valid justification for amnesty from suit, looking retrospectively, it is likewise a valid justification looking forward.

As for timing on passage, it appears there will be an extended "debate" (scare quotes, because Congressional debate is generally demagogic, not substantive) by both the House and the Senate.

Senate Panel Approves New Surveillance Bill - WaPo

... aides to Senate Democratic leaders said they expect to be able to pass a bill by late November.

In the House, meanwhile, Democratic leaders said they are considering bringing their own version of the bill to a vote, without the immunity provision, as early as next week. The leaders pulled back from such a vote on Wednesday, because they could not prevail over GOP opponents on a parliamentary maneuver.

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Senator Durbin's DREAM Act is back (I thought it might even appear in the Labor/HHS Appropriations bill), this time as a stand-alone bill, S.2205, read for the first time and put on the calendar as such, on October 18.

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No roll call votes (and no Committee meetings, and no Committee hearings) today. The "pending amendments" stack for the Labor/HHS Appropriations bill contains 11 amendments.

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AT&T and Verizon Executives Give Senator Rockefeller $43,000

Fate Unclear For Senate Bill Giving Telecoms Wiretap Immunity - Dow Jones

Sen. Joseph Biden, D-Del., also a Democratic presidential candidate, has come out in opposition to the [amnesty] provision too. ...

Obama's office, as well as the campaign and Senate offices for Sen. Hillary Clinton, D-N.Y., have refused to comment.

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There are many interesting individual orders in Homeland Security Presidential Directive - HSPD-21.

  • (21) The Secretary of Health and Human Services shall establish an operational national epidemiologic surveillance system for human health
  • (34) The Secretary of Homeland Security, in coordination with the Secretary of Health and Human Services, shall prepare an unclassified briefing for non-health professionals that clearly outlines the scope of the risks to public health posed by relevant threats and catastrophic health events
  • (42) The Pandemic and All-Hazards Preparedness Act (PAHPA) (Public Law 109-417) requires that the Secretary of Health and Human Services submit in 2009, and quadrennially afterward, a National Health Security Strategy (NHSS) to the Congress.

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Press Briefing by Dana Perino - Oct 16

President Bush has a constitutional responsibility to nominate excellent judges to serve in America's courthouses. It's one he takes very seriously. The Senate also has an important responsibility to act on the President's nominations. ...

On August 2nd, the Senate Judiciary Committee voted Judge Leslie Southwick, a nominee for the Court of Appeals for the 5th Circuit, out of committee with a favorable bipartisan vote. And as the full Senate prepares to vote on his nomination, we encourage all members of the Senate to swiftly confirm Judge Southwick. He is a highly respected attorney with an extensive record of public service as a judge and military officer.

And what of Keisler, Kethledge and Murphy? No pressure from President Bush for the Committee to act on those nominations, all of which were submitted to the Senate before Southwick's.

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14:00: This won't make it into the record, but I saw it with my own eyes. The Senate ratified a treaty, with the voting protocol being tally by standing. Senator Reid is the only Senator in the chamber, besides Senator Klobuchar, who occupies the chair. All those in favor, rise. [Senator Reid is standing] All those opposed, rise [Senator Reid is still standing]. Okay, let's do that over again, agree the two Senators. [Senator Reid sits] All those in favor, rise. [Senator Reid stands] All those opposed, rise [Senator Reid sits] The treaty is ratified. [Senator Reid stands] Then the following brief exchange ...

Reid: How do you think I feel, being 2/3rds of the Senate?
Klobuchar: You look like you're almost a whole.

I swear, I am not making this up.

14:02: Senate stands adjourned until 2:00 p.m. Monday.


October 20

A not-unusual "parliamentary" maneuver here, where the competing texts that will go to conference on a bill are contained in completely separate bills.

Mr. REID. Madam President, I ask unanimous consent that the Senate proceed to the consideration of Calendar No. 340, H.R. 3221, the House Energy bill; that all after the enacting clause be stricken and the text of the Senate engrossed amendment to H.R. 6 be inserted in lieu thereof; that the bill be read a third time, passed, and the motion to reconsider be laid upon the table; that the Senate insist on its amendment, request a conference with the House, and the Chair be authorized to appoint conferees and that the title amendment at the desk be agreed to. ...

Mr. CORNYN. ... we are trying to clear any objections on our side ... I must respectfully object.

H.R.6, as passed by the House, ran 16 pages. The Senate gutted that, and substituted 464 pages of legislation. The House later passed H.R.3221, which weighs in at 1004 pages. The measures to be combined and negotiated are the 464 pages of Senate prose and the 1004 pages of House prose. There are plenty of nasty stinkers in either version of the Energy Bill. It'll be interesting to see if Senator Stevens can again sneak an ANWR provision into the conference report.

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U.S. Supreme Court Justice Antonin Scalia speaks out at VU campus - a place I am very familiar with, wish I could have been there.

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Claim of Pressure for Closed Guantánamo Trials - New York Times

Colonel Davis, a career Air Force lawyer, said one of his priorities as chief prosecutor had been to get as much evidence as possible declassified so people around the world could assess the strength of cases against terrorism suspects. But he said two officials told him in September that he was wasting time declassifying evidence and that it was more important to move quickly by filing charges against detainees.

No matter how perfect the trial is, Colonel Davis said, if its behind closed doors, its going to be viewed as a sham.

If there is a sham trial at GTMO, and the world isn't aware of it, how can it be viewed as a sham? Out of sight, out of mind.

There is a puzzling aspect hinted by the news report. How do declassification and concerns about trial contents play into hesitation in charging? Classified evidence is, in the context of trial by Military Commission, generally admissible. Therefore development of charges doesn't depend on classified evidence being declassified.

Watch for some surprising plea bargains and/or releases, of "big name" detainees, as far as legal process has gone. I expect the Hamdan and Boumediene cases to be disposed of via plea bargain and release. The alternative is to have the law of detention reviewed by SCOTUS, with a risk of an decision adverse to the administration. Better to free the detainees than to have prior acts ruled "out of bounds" by SCOTUS, which might find those cases to embody detention with inadequate evidence or inadequate process.

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H/T HowAppealing ...

Immunity push for telecom firms might not kill wiretap suits

For one thing, [attorney Lee Tien of the Electronic Frontier Foundation] said, plaintiffs' lawyers would argue that retroactive immunity in this case violates the constitutional separation of powers.

"When you've got pending lawsuits and suddenly pull the rug out from under them ... that's a major attack on the role of the judiciary," Tien said. ... In addition, he said, Congress has no power to grant immunity for constitutional violations.


October 21

On the Higazy case, a very good overview of the range of events in "A tale of two decisions" - by Steve Bergstein.

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If true, and I have plenty of resasons to doubt Senator Reid's veracity, the hold up on getting to the Southwick nomination is due to waiting for the Republicans to specifically request the nomination be brought up for a vote.

Mr. REID. I have indicated, Madam President, we have a lot of work to do. The chairman of the Judiciary Committee and I have stated on a number of occasions that on controversial judicial nominations we are not going to move on those until the minority tells us that is what they want to do. One of those nominations is Judge Southwick. That matter was reported out of committee sometime ago, and both Senator Leahy and I have said that when the Republicans tell us they want to move to that nomination, we would do that. So sometime next week I am more than likely going to move to that matter. So I want everyone to know that, in fact, is the case.

4 Comments:

Blogger Epicurus said...

Hey cboldt,

I know this is a "House" question, but you seem to have a better handle on the parliamentary issues than anyone else I read:

What was the deal with the motion to recommit on the Protect America Act in the House today?

Specifically:

1. Why didn't the majority bring it to the floor with a closed rule which would have prevented this type of tactic? Is the motion to recommit always in order for the minority to make? Was the motion to recommit on the rule or the bill itself?

2. I read in an AP story that passing the motion would recommit the bill (or the rule? the story wasn't clear) to committee, where the bill would be effectively dead. Why is that? Why couldn't the majority just report it our of committee to the Floor again?

Any thoughts you have would be greatly appreciated.

Thanks,

Epicurus

10/17/2007 10:08 PM  
Blogger cboldt said...

On the House action on the RESTORE Act, I think it was brought "with a right to amend" because the majority either had amendments in mind, or it didn't anticipate the exact amendment the GOP offered.
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As you surmise, recommitting the bill to Committee doesn't kill it. The device that effectively killed it was the language of the GOP-proposed amendment in combination with the language of the RESTORE Act, and the nature of the debate that would follow.
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The gist of the pro-snooping argument boils down to "because foreign terrorists use switches located in the US, no American citizen who uses the same switch can expect privacy on those switches. Such an expectation enables terrorism."
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Soon to be extended to wholly domestic communications, for exactly the same reason.

10/18/2007 12:13 PM  
Blogger cboldt said...

To some of your detail questions:
.
I believe a motion to recommit is always in order, by either side. It just happened to be the chosen/threatened vehicle for airing the alternative, chosen by the minority this time around.
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Any motion to recommit would have been on the bill. The rule (agreement to consider the underlying bill, with conditions of the consideration) passed the House. There was no motion to recommit the Rule, either with or without changes.
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On reading the Rule, H.Res.746, I see that it cuts off the possibility to amend. This leaves "Motion to Recommit, with changes" as the only device for inserting changes. The majority has the power to vote down the motion to recommit.
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But neither House debate on the Rule (passed 223-196), nor (some) House debate on the Bill includes a Motion to Recommit. Further consideration was postponed without any parliamentary process.

10/18/2007 12:46 PM  
Blogger cboldt said...

It looks to me as though the DEMs decided to punt handling the FISA issues (retroactive immunity; absence of warrant for snooping on international communications involving Americans located in America) from the House to the Senate. The GOP-proposed language for the RESTORE Act isn't substantive in the least, it's pure emotional drivel.
.
News Flash - Congress is no more interested in protecting individual rights than any executive/president is. The dog and pony show is designed for one purpose. Re-election.

10/18/2007 1:23 PM  

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